VERNON — Employers generally decide if a position is hourly or salaried. Certain criteria must be met, however, for salaried positions.
The federal Fair Labor Standards Act (FLSA) dictates standards for the basic minimum wage and overtime pay for hourly (“non-exempt”) employees.
Hourly federal minimum wage is $7.25. Vermont state law supersedes the federal standards, and state employers must pay $8.06 an hour. The federal and Vermont overtime is set at 1.5 times an employee's regular rate of pay.
On the other hand, jobs that meet certain criteria can be excluded (“exempt”) from FLSA coverage.
Employees performing executive, administrative, professional, or outside sales duties are exempt from receiving overtime.
Exempt executive employees must earn a base rate of $455 a week. Their primary duty must entail managing a department. They must regularly manage at least two or more full-time or four part-time employees, a role described in the police chief's job description.
Executive employees must have the authority to hire, fire, or promote other employees, or they must influence those who do have that authority, as now-former Police Chief Kevin Turnley did in his bringing his hires to the Selectboard for approval.
Dirk Anderson, attorney with the Vermont Department of Labor, doesn't see a scenario where a salaried employee can legally claim overtime, even if Turnley routinely worked 90 hours per week. “I do not believe there's a maximum number of hours that if worked would violate a salary unless it was a breach of a verbal agreement,” he said - for example, an acknowledgment that additional time should be compensated.
Anderson did not know of any precedent for Turnley and the Selectboard's debate or similar situations in Vermont.
Vermont League of Cities and Towns Executive Director Steve Jeffrey says that although normally a salaried employee - by definition - receives no overtime, he or she can contest the classification if treated like an hourly employee (if the employer docks the employee's pay, for example).
Jeffrey stresses that arguing a salaried employee receive back overtime pay would be a case-by-case issue. He declined to comment in depth on Turnley's case, as VCLT serves as Vernon's insurance carrier and might be called to appear in court should the case go to trial.